Implied Rights of Action and the Broader Problem of Methodoloigcal Change

Abbe Gluck

We were once purposivists, we are now textualists. Yada yada yada. It’s widely accepted that the Court has shifted over the past decades from a more eclectic approach to questions of statutory interpretation – which often took into account congressional intent, purpose, and history alongside text – to a modern approach that is increasingly separated from congressional evidence and tethered to text, linguistic rules, and associated presumptions. This shift is core to the current array of disputes about which federal statutes allow individuals to sue to enforce their guarantees, including FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd., to be argued at the Court today. Whereas the Court used to look to legislative purpose as a critical inquiry in implying rights of action, it now seeks "unmistakeably " express language, very much in line with the rest of its modern textualist approach, and a much higher bar for Congress to clear.

The briefs in FS Credit are full of references to the "bad old days" of the pretextualist era, depicting decades and decades of purposivism as a mere wrongheaded frolic and detour in the history of statutory interpretation. That makes too light of the big question here, namely, what to do when statutes are drafted under one interpretive regime, but litigated under another decades later?  That question, in turn, goes to the fundamental matter of how much in conversation we expect the courts and Congress to be. Justice Scalia always assumed his interpretive methods were in conversation with, or at least known to, Congress.  The current Court seems to care about this conversation a whole lot less.  And it's not an issue confined to  the implied-rights-of-action context. It's highly relevant to areas ranging from administrative deference, to severability, to virtually any federal statute drafted before the mid-1990s.  

My essay currently up at Scotusblog offers a broader discussion.